Local attorney tries to trip up new ordinance about sidewalk repairs

The vote was barely in before a local attorney filed an objection to the borough’s newest ordinance governing the sidewalks.

The Borough Council at its Nov. 12 Council meeting approved a new sidewalk ordinance intended to satisfy a Sept. 12 legal ruling that the law as previously written was too vague to be enforceable. The new ordinance defines exactly how level the sidewalk must be, and how much lift it can have before it needs to be mended.

Council members believe the ordinance puts the administration on solid legal footing, but attorney Mark Oshinskie, who filed the previous legal challenge, disagrees.

“I think it’s still flawed, primarily because it doesn’t matter how specific the specifications are,” said Mr. Oshinskie, who lives on Walnut Street.

At the center of the disagreement is whose responsibility it is to maintain the condition of the sidewalks. Borough officials, citing state statute, contend that it is irrelevant whom the sidewalks belong to. The ordinance and its enforcement rely on a legal understanding that homeowners are responsible for maintaining the condition of sidewalks abutting their property.

“It’s my belief that this is the most efficient way to have the individual take care of the sidewalk problem,” said Council President Padraic Millet as he explained his vote in favor of the ordinance. “This is not a new thing, that homeowners are responsible for the maintenance of their sidewalks.”

Opponents of the law, such as Mr. Oshinskie, contend that the onus properly lies with the borough.

In a conversation with The Planet, Mr. Oshinskie likened the situation to the legal doctrine of entrapment. In this view, the borough has created the problem by planting trees next to sidewalks, and then holding homeowners accountable when the roots of those trees lift or crack the sidewalks.

“It’s all caused by the trees, and those are all municipally owned trees,” said Mr. Oshinskie. “The homeowners are innocent bystanders with the trees.”

At the council meeting Mayor Gayle Brill Mittler noted the situation with the trees, but did not view them as a game-changer.

“The trees are a conundrum to all of us,” said Mayor Gayle Brill Mittler.

Mr. Oshinskie’s objection to the new ordinance will get its public hearing on Dec. 5. If the reviewing judge dismisses it, given that the council no summonses have been issued under the new ordinance, Mr. Oshinskie intends to file a new objection in the springtime.

In the mean time, both the Borough Council and Mr. Oshinskie are confident in the legal arguments they have on their side.

Borough Attorney Ed Schmierer called the fundamental philosophy underlying the ordinance legitimate. The ordinance require homeowners to maintain sidewalks abutting their property, without regard for whether they own the actual sidewalks themselves. In so doing, Mr. Schmierer said, the ordinance follows state statute.

For his part, Mr. Oshinskie sees a string of victories in his fight against the sidewalk ordinance. So far, his legal challenges have resulted in an injunction against enforcement of the previous ordinance, the dismissal of outstanding summonses, and most recently the new language the borough added to reflect the enforcement standards.

‘I’ve beaten them in every way except making them do pushups,” said Mr. Oshinskie.

But town officials are only concerned not about doing pushups for exercise, but simply walking on sidewalks without falling.

One thought on “Local attorney tries to trip up new ordinance about sidewalk repairs